Rabah Ghezali: France’s Illegal Ban of the Burqa

After months of controversy, the French Senate recently adopted the law banning the burqa — the enveloping outer garment worn by women to conceal their bodies from head to toe in some Islamic traditions — in public spaces. Whether we like the burqa or not, we should recognize that French Parliament violated freedoms of expression, thought, conscience and religion — a string of fundamental human rights that can no longer be taken for granted in France since the ban.

Both sets of principles are enshrined and protected by our modern constitutions and above all by the European Convention of Human Rights to which France and most European countries are signatory parties. In the United States, these freedoms are likewise recognized by the first amendment, which protects the free exercise of religion. These principles are among the pillars of our democratic societies in which anyone is free to practice (or not) the religion they choose or to express their ideas, irrespective of their absurdity or falsity, without prior approval of the authorities. In a law-abiding nation, the state must not judge the beliefs or opinions of its citizens based on reason, tradition or any other value. As with any other fundamental freedoms, if these civil liberties must be restricted then limitations should be both minimal — in as much as the circumstances allow — and strictly motivated by higher interests.

There is little doubt that for the European Court of Human Rights, Article 9 of the European Convention, which protects religious freedom, does not permit adopting general measures aimed at banning religious clothing. The European Court recently reminded Turkey of this in the “Ahmet Arslan and others v. Turkey” case of February 23, 2010. Recognizing this, in May 2010 the French Administrative Supreme Court, the Conseil d’Etat, questioned the legality of a prospective French ban.

The decisive question is whether the burqa is a religious dress, more or less like others, or nothing but an affront to a woman’s dignity. Since the debate rightly focuses on women’s rights, let’s follow the following line of reasoning.

The argument that banning the burqa is about eliminating family or marital pressures placed upon women to wear the burqa against their will overlooks existing laws against such criminal behaviors. The new French law would not remove difficulties in proving that a woman is being forced to wear it. The “burqa law” will, in fact, mostly affect those who freely choose to wear it in clear contradiction to the provisions of the European Convention.

It is nonsensical to suppose that an individual’s free and deliberate choice to veil their person violates their own human dignity. The French legislature and government have no legal right to decide what outfit is allowed and which one is in essence violating women’s dignity. When they assume this role, they act as moral censors rather than institutions acting impartially for universal welfare.

Besides being illegal, the ban is grossly unfair in targeting one religion: Islam. In spite of certain physical resemblances that would seem to amount to a comparable assault on human dignity, monastic robes are deemed entirely compatible with the values of the French Republic. This discriminatory treatment perhaps explains why a great number of French Muslims, who are in their great majority secular, feel that the ban is unjust.

The provisions of this law will be applicable from spring 2011, after six month of “mediation” and “pedagogy.” Thereafter, policemen will have the authority to fine women wearing the burqa.

What will punishing women to be free achieve? If this law was passed to increase social inclusion, it seems likely instead to accentuate the confinement of these women. More generally, it smacks of being part and parcel of a campaign to purge a particular notion of “French” identity of “foreign elements” and this can only foster social strife. These “foreigners” are French citizens; France, as much as the United States, is the result of waves of immigrants over its rich history. Given these constitutional and practical flaws, why has this law happened? The only sensible rationale is one of political cynicism: President Sarkozy and his party understand the political capital in issue. By banning the burqa under a smokescreen of women’s rights they renew the support of the anti-immigrant, anti-Muslim right. Meanwhile, their feminist rhetoric disarms an easily divided left and forestalls serious resistance to what amounts to institutionalized xenophobia for party political gain.

In a globalized context of Islamophobia, underlined in the U.S. by the Park 51 controversy, France’s ban on the burqa has little to do with female emancipation. The sudden feminism of the French political class can hardly obscure their past inertia in addressing women’s causes. Short of ideas and unable to solve real economic and social problems, the current government has proved remarkably effective in finding an eclectic range of targets in order to divert the attention of voters. After journalists, immigrants, the European Union, the Romas and the Muslims, however, even the resourceful President Sarkozy may soon exhaust his reserves of scapegoats and red herrings.